O R D E R

JUSTICE R.N.BISWAL, PRESIDENT

          This appeal has been preferred against the order dated 1.2.2014 passed by the District Forum, Jharsuguda in C.C. no. 34 of 2013 directing opposite party nos. 1 to 3 jointly and severally  to cancel the loan contract No. 7000155175 of the complainant and return him the blank cheques bearing Serial Nos. 222046 to 222054 of Axis Bank, Jharsuguda, the balance EMIs Rs.5,050/-, processing fees of Rs.10,000/- and to  pay him Rs.50,000/- towards compensation for harassment and mental agony and directing opposite party no. 4 to pay a sum of Rs.5,000/- towards litigation costs to him.

          Appellant was opposite party no. 2 and respondent was complainant before the District Forum. The other opposite parties are not added as a party in the appeal.

          The case of the respondent, who was complainant before the District Forum, stated in brief is that being induced by Mr Surya Narayan Mohapatra an Executive of the appellant – Company, Rourkela Branch and Mr Binod Mahapatra of the said Branch, he applied for financial assistance to purchase one HGV Hyva Tata LPK 2518 on 29.7.2012. His application being allowed, the respondent executed an agreement with the Branch Manager of Rourkela Branch wherein the vehicle was hypothecated to them and gave them nine numbers of blank cheques of  Axis Bank, Jharsuguda bearing Serial nos. 222046 to  222054 and process fees of Rs.10,000/- in cash vide loan agreement/contract no. 7000155175 having Customer ID no.2700679765, but the said vehicle was not  delivered to the respondent by opposite party no. 4, who has not been arrayed as a party in this appeal, perhaps as it was set ex parte before the District Forum.  Respondent wrote to the Branch Manager of the appellant – Company  Rourkela Branch  on 3.9.2012 to cancel the aforesaid agreement. He received a letter in the end of November, 2012 from Tripathy & Co. on behalf of opposite party/respondent denying to cancel the agreement and instructing him to make payment of the EMIs as per the agreement. Even though the delivery of the vehicle had not been made to him, the Branch Manager of appellant – Company, Rourkela Branch wrote him again and again for repayment of the EMIs. So alleging deficiency in service on the part of the appellant – Company and opposite party no. 4, he filed the aforesaid Consumer Complaint before the District Forum with the following prayer:-

“a)      Immediate cancellation of Agreement and stop the auto debit of monthly instalments from the account.

b)       Balance EMIs Rs.5,050/- along with interest @18% on Rs.65,050/- (rupees sixty five thousand fifty) for the period from 4.2.2013 to till payment, process fees of Rs.10,000/- along with interest  at the rate of 18% from the date of payment/collection.

c)       Return of Blank Cheques nine numbers, Sl.No.222046  to  222054  of  Axis Bank, Jharsuguda and all documents received for approval of loan.

d)       For mental agony and harassment Rs.1,00,000/-.

e)       For legal expenses Rs.15,000/-.

f)        And any other relief as the Honourable Forum may think fit.”

          Opposite parties 1 to 3 appeared through their counsel and filed written version contending that the District Forum had no territorial jurisdiction to entertain the Consumer Complaint since there was no Branch of the appellant – Company and no cause of action arose under the jurisdiction of District Forum. The respondent does not come under the ambit and scope of ‘consumer’ as defined under the C.P.Act.  In the agreement entered into between the respondent and the appellant – Company  (opposite party nos. 1 to 3), there is an arbitration clause, where it has been stipulated that in case of any dispute between the parties to the agreement, the same shall be decided by an arbitrator. It is their further case that they wrote to the opposite party no. 4 vide letter dated 30.7.2012 to release one vehicle and pay them Rs.23,81,000/-. So if opposite party no. 4 did not release the vehicle, it cannot be said that the appellant – Company was deficient and accordingly, prayed to dismiss the Consumer Complaint.

          After hearing the learned counsel for the parties and going through the pleadings and documents on record, the District Forum held that the appellant – Company (opposite party nos. 1 to 3) even after  getting information about the non-delivery of vehicle to the respondent and after repeated request by her for cancellation of the agreement, they kept the said agreement in force and accordingly, held the appellant – Company (opposite party nos. 1 to 3) and opposite party no. 4 to be deficient in their service and accordingly, passed the impugned order.

          Being aggrieved with the said order, the appellant has preferred the present appeal as stated earlier.

          Learned counsel for the appellant submits that the District Forum erred in entertaining the Consumer Complaint since in the agreement executed between the parties, it was stipulated that in case of any dispute arising between the parties relating to the agreement the same shall be decided by an arbitrator. Moreover, there is no office of the appellant Branch under the territorial jurisdiction of the District Forum, Jharsuguda. No cause of action also arose under the said jurisdiction. So, the District Forum ought not to have entertained the Consumer Complaint on this ground also.

          He next submits that the appellant – Company  released Rs.23,81,000/- in favour of opposite party no. 4  from whom the respondent purchased the vehicle vide their letter dated 30.7.2012. The amount sanctioned in his favour was disbursed to opposite party no. 4. So it cannot be said that there was deficiency of service on the part of the appellant – Company.

Learned counsel for the appellant further submits that there is a Clause in the agreement that if any dispute arises between the parties, then the same shall be decided in the court at Mumbai. So the District Forum has no authority to entertain the Consumer Complaint.

          Learned counsel for the respondent on the other hand contends that even if an arbitration clause is there in the agreement, the jurisdiction of the District Forum, State Commission and the National Commission as the case may be cannot be barred to entertain a Consumer Complaint.

Learned counsel for the respondent further contends that the District Forum is not a Court. So there is no bar for the District Forum to entertain the Consumer Complaint even if there is a clause in the agreement that in case of any dispute between the parties, the same shall be decided by the Courts at Mumbai.

It is found from the record that the agreement was entered into between the parties in the house of respondent and some documents were taken from his house by Surya Narayan Mohapatra and Binod Mahapatra. So a part of cause of action has arisen within the local jurisdiction of the District Forum, Jharsuguda.  It cannot be said that the District Forum has no jurisdiction to entertain the Consumer Complaint on that ground.  Section 2(d) (i) & (ii) of C.P.Act reads as follows:-

          (d) “Consumer” means any person who –

(i)       buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)      [hires or avails of] any services for a consideration whch has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such servicecs other than the person who [hires or avails of] the services for consideration paid or promised, of  partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does  not include a person who avails of such services for any commercial purpose];

[Explanation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]

          There is no pleading on behalf of the respondent that he needed the vehicle for the purpose of earning his livelihood by means of self employment. As such, he is not a consumer. In view of such finding, the other arguments advanced by learned counsel for the parties are not required to be gone into.

          Under such premises, the appeal is allowed and the impugned order is set aside. If so advised the respondent may take resort to the appropriate Forum for redressal of his grievance.

          Records received from the District Forum be sent back forthwith.